In the recent decision Her Majesty the Queen v. CBS Canada Holdings Co., 2020 FCA 4, the
Federal Court of Appeal held that the Crown (i.e., Her Majesty the Queen,
representing the Minister of National Revenue and her agent the Canada Revenue
Agency) could not resile from a settlement agreement with a taxpayer into which
it had entered freely, simply because the Crown’s assumptions on which it had
decided to enter into the agreement turned out to be wrong (or at least may
have been wrong).

The taxpayer had claimed a non-capital
loss-carry-forward, which the Minister denied by way of an assessment. The
taxpayer appealed the assessment to the Tax Court of Canada. Before trial, the
parties reached an out-of-court settlement under which the Crown agreed to
allow the loss carry-forward.

After signing the agreement, the Crown refused
to implement it on then basis that it was “factually indefensible with no
bearing in reality, therefore, illegal and non-binding on the Minister”. In
short, the Crown now took the position that there were no losses and hence the
agreement agreeing to allow such losses to be carried forward could not be
enforced. The Crown relied on an old case called Galway for the principle that the Tax Court will not implement a
settlement agreement or Consent Judgement unless it reflects a “principled”
approach to the appeal, that is, unless it reflects terms that the Court itself
might have granted in a Judgment had the matter gone to trial (one wonders what
led the Crown to agree to the agreement in the first place, but that is
irrelevant for present purposes).

The taxpayer applied to the Tax Court for an
order requiring the CRA to reassess in accordance with the agreement. The Tax
Court held and the Federal Court of the Appeal agreed, that the Crown could not
resile from the agreement; the Crown entered into the agreement freely and
believed the agreement to be in accordance with the facts and the law at the
time it did so. The Courts held that the general principle is that parties,
including the Crown, should be bound by agreements into which they enter. As
for Galway, the FCA held that it was
still good law but did not apply on these facts, primarily because it was not
self-evident that the settlement agreement was wrong or invalid or contained
terms that the Tax Court could not have found had the matter gone to trial. As
the FCA said: “Galway intended that courts would intervene only in very
limited circumstances where it was evident on the face of the limited material
before the Court there was a factual or legal problem with the settlement.”

The Courts’ decisions provide surety to a taxpayer
who enter into a settlement agreement with the Crown, as the Crown will not be
able refuse to implement it if it later learns or believes that the factual basis
of the settlement was incorrect.

The Crown argued also that it could not
reassess the taxpayer in accordance with the settlement agreement because that
would result in the taxpayer owing an increased amount of tax in one of the
years in issue. However, the FCA held that this was irrelevant: it was the
taxpayer, not the CRA, that was seeking an order that would result in an
increase in taxes payable. This did not violate the rule that the CRA cannot
appeal its own assessment so as to increase the tax assessed.

The taxpayer was a software company that claimed Scientific Research and Experimental Development (SR&ED) tax credits for the 2009 taxation year. The CRA reassessed to deny the SR&ED credit claims.

In the Tax Court, the taxpayer challenged the qualification of the CRA’s expert witness on the basis that she did not have the necessary impartiality to testify as an expert witness in the appeal. The Tax Court held a voir dire to determine whether the Crown’s proposed expert witness could testify in the appeal.

The proposed expert witness held a doctorate in computer science and was employed with the CRA as a Research and Technology Advisor (RTA). The taxpayer’s allegation of impartiality was not based on the fact that the proposed expert witness was employed with the CRA. Rather, the taxpayer argued that it was the proposed expert witness’s involvement in every stage of the file that impugned her impartiality.

The Crown submitted that it is rare for a court to refuse to hear the testimony of an expert witness, and that there must be clear evidence of bias, which, according to the Crown, was not present in this case. Moreover, the Crown submitted that it was in the capacity as an expert that the opinion was given, irrespective of whether this occurred at the audit stage, objection stage, or during appeal.

Analysis

In analyzing whether to admit the evidence by the Crown’s witness, the Tax Court reviewed the leading case on the admission of expert evidence, the Supreme Court of Canada decision R. v. Mohan ([1994] 2 SCR 9), in which the Court set out the criteria for determining whether expert evidence should be admitted, namely: relevance, necessity in assisting the trier of fact, the absence of an exclusionary rule, and a properly qualified expert.

In Mohan, the Supreme Court established that the question of relevancy is a threshold requirement for the admission of expert evidence and a matter to be decided by the judge as a question of law. There must first be logical relevance in order for the evidence to be admitted. The judge must then perform a cost-benefit analysis to determine whether the value of the testimony is worth the costs, in the sense of its impact on the trial process.

The Tax Court also reviewed R. v. Abbey (2009 ONCA 624), in which the Ontario Court of Appeal applied Mohan but also distinguished between the preconditions to admissibility and the judge’s role as a gatekeeper. The Ontario Court of Appeal noted that while the inquiry into the preconditions to admissibility is a rules-based analysis that tends to yield “yes” or “no” answers, the gatekeeper function does not involve the application of bright line rules and frequently requires the exercise of judicial discretion. The gatekeeper function is more subtle and involves weighing the benefits of the probative value of the evidence against the prejudice associated with admitting the evidence.

In HLP, the Tax Court held that it was preferable to disqualify the expert at the qualification stage. The Court based its conclusions on many of the taxpayer’s allegations, including the following:

the proposed expert witness was involved with the audit and objection;

the proposed expert witness delivered the opinion (the technical review report) that served as the basis for the assessment;

following the taxpayer’s representations, the proposed expert witness also wrote an addendum to the technical review report in which she maintained the same position;

the proposed expert witness participated in every meeting with the taxpayer as the CRA’s representative;

the proposed expert witness confused her role as an RTA with that as an expert witness; and

The Tax Court was careful to note that it was not disqualifying the expert on the basis of her employment with the CRA but rather on the basis of her close involvement throughout the audit and objection stages of the file.

The Tax Court allowed the Crown to submit a new expert report.

The Tax Court’s decision in HLP will have a direct impact on future cases in which proposed expert witnesses were involved in the audit and objection processes as CRA employees. Such employees – though they may have the required professional qualifications to testify as an expert witness – cannot be qualified as expert witnesses because they lack the necessary impartiality to testify.

ConocoPhillips had commenced an application for judicial review as a result of a dispute between the CRA about whether a Notice of Reassessment had been validly sent to the taxpayer. The CRA alleged that it mailed a Notice of Reassessment on November 7, 2008. ConocoPhillips alleged that it never received the Notice of Reassessment and that it first learned of the reassessment on April 14, 2010.

Accordingly, when ConocoPhillips filed a Notice of Objection on June 7, 2010, the CRA advised that it would not consider the objection on the grounds that it was not filed within 90 days of the alleged mailing date (i.e., November 7, 2008) and that no request for an extension of time was made within the year following the alleged mailing date of the reassessment.

The Federal Court considered the question of jurisdiction and found that it had jurisdiction because the Court was not being asked to consider the validity of the reassessment (which can only be determined by the Tax Court of Canada) but rather, was only being asked to review the CRA’s decision not to consider the objection.

Based on the standard of reasonableness, the Federal Court found in favour of ConocoPhillips on the basis that the CRA had not sufficiently engaged the evidence to appropriately render an opinion whether or not the reassessment was mailed on the alleged date. The Court set aside that decision.

The Crown appealed to the Federal Court of Appeal on the basis that the Federal Court lacked jurisdiction on this issue. The Federal Court of Appeal allowed the appeal.

Section 18.5 of the Federal Courts Act provides that judicial review in the Federal Court is not available where, inter alia, an appeal is permitted on the issue before the Tax Court of Canada. In the present case, the Federal Court of Appeal stated that, pursuant to subsection 169(1)(b) of the Income Tax Act (Canada), ConocoPhillips could have appealed to the Tax Court after 90 days had elapsed following the date its objection was initially filed and the Tax Court would have been the correct forum to determine if, or when, the Notice of Reassessment was mailed and when the time for filing a Notice of Objection expired.

The Federal Court of Appeal clarified that the Minister’s obligation to consider a Notice of Objection is triggered regardless of whether a Notice of Objection may have been filed within the required time-frame. Further, the Minister’s decision on this issue is not an impediment to filing an appeal to the Tax Court pursuant to paragraph 169(1)(b) of the Income Tax Act (Canada). Accordingly, judicial review of this issue was not available in the Federal Court.

In Morton v. The Queen (2014 TCC 72), the Tax Court of Canada upheld penalties imposed by the Minister of National Revenue (the “Minister”) under subsection 163(2) of the Income Tax Act (Canada) (the “Act””) despite novel arguments by the taxpayer to the contrary.

In this case, the taxpayer originally filed his income tax returns for the relevant years and paid taxes on the reported income. After the normal reassessment periods expired, utilizing the taxpayer “fairness” provisions in subsection 152(4.2) of the Act, the taxpayer filed T1 Adjustment Requests containing false information in the form of additional income and expenses that would place the taxpayer in a tax loss position in each year. If the Minister had accepted the adjustments, the taxpayer would have received refunds in excess of $202,000.

However, the taxpayer’s plan did not work out as expected. The Minister not only denied the T1 Adjustment Requests, but also levied penalties in excess of $75,000 pursuant to subsection 163(2) of the Act. These penalties were the subject of the appeal to the Tax Court.

During testimony, the taxpayer admitted to supplying false information in the T1 Adjustment Requests intentionally, knowingly and without reliance on another person. In defense of his actions the taxpayer claimed that he was under stress due to financial difficulties, a marriage breakdown and loss of access to his business books and records. At trial, the Tax Court found as a matter of fact that the misrepresentations were made fraudulently and rejected the taxpayer’s defense since no documentary evidence could be supplied in respect of the alleged stress.

The remainder of Justice Bocock’s decision contained a thorough analysis of the provisions of subsection 152(4.2) of the Act in the context of levying a penalty pursuant to subsection 163(2) of the Act. Justice Bocock provided the following insights:

Even where information is supplied to the Minister outside of the context of filing a return for a particular taxation year, if the taxpayer makes fraudulent misrepresentations sufficient to assess under subparagraph 152(4)(a)(i) of the Act, for instance in requesting that the Minister reopen the taxation year under subsection 152(4.2) of the Act, the Minister may assess penalties for a statute barred year.

The penalty provisions in subsection 163(2) of the Act apply even in the absence of the Minister issuing a refund or reassessment that relies upon the incorrect information. The Tax Court found it would be absurd to require the Minister to rely on the fraudulent misrepresentations before levying a penalty; and

The meaning of the words “return”, “form”, “certificate”, “statement” and “answer” in subsection 163(2) of the Act should be defined broadly to include documents such as the T1 Adjustment Request. Limiting the application of penalties to prescribed returns and forms ignores the plain text, context and purpose of the Act and would lead to illogical results.

It should come as no surprise that the Tax Court upheld the penalties. Nevertheless, the decision provides an enjoyable and thought provoking analysis of the provisions contained in subsections 152(4.2) and 163(2) of the Act.

In Brianne Gwartz v. The Queen, 2013 TCC 86, the Crown attempted to utilize the GAAR to recharacterize as dividends certain capital gains which had been realized by a family trust and allocated to the minor-aged taxpayers in 2003, 2004 and 2005. The Crown argued that the transactions giving rise to the GAAR circumvented section 120.4 (the “kiddie tax”) which was amended in 2011 to apply to certain capital gains paid to minors.

The taxpayers conceded the existence of a “tax benefit” and an “avoidance transaction”, leaving the only issue being whether there existed “abusive tax avoidance”. The Tax Court of Canada made some interesting comments about the application of the GAAR generally and specifically as it related to this case, the main points of which can be summed up as follows:

1 Tax planning is not inherently abusive for the purposes of ss. 245(4): Taxpayers are entitled to plan their affairs in such a way that will minimize tax liability. Choosing a course of action that minimizes the tax liability is not necessarily abusive [paras. 45 and 46].

2 GAAR cannot be used to fill in the gaps: Abusive tax avoidance cannot be found to exist if a taxpayer can only be said to have abused some broad policy that is not in itself grounded in the provisions of the Act. “[I]t is inappropriate, where the transactions do not otherwise conflict with the object, spirit and purpose of the provisions of the [Act] to apply the GAAR to deny a tax benefit resulting from a taxpayer’s reliance on a previously unnoticed legislative gap” [para 47].

3 There is no broad policy in the Act against surplus stripping: In this case, the Crown contended that the taxpayers contravened the general policy against surplus stripping, but dropped this position at trial. The Court noted that courts have held that surplus stripping does not inherently constitute abusive tax avoidance [para 50].

4 There is no broad policy in the Act against income splitting: The Court noted that the increasing marginal tax rates and the choice to tax the individual as the basic taxable unit create incentives under the Act for taxpayers to split their income with their family members [para. 52].

5 The significance of subsequent amendments as an indicator of the policy underlying previous versions of a provision: The Court noted subsequent amendments do not necessarily in themselves provide an indicator of some policy underlying the prior versions of a legislative provision. Subsequent amendments must be considered along with all other relevant material to ascertain the object, spirit and purpose of the provision. In certain circumstances, a subsequent amendment might suggest that the provision’s object or spirit were frustrated by the tax avoidance strategy. In other circumstances, it might suggest that Parliament simply changed its mind and now intends to prevent something that initially was not intended to be captured by the provision [para 57].

The Court ultimately allowed taxpayers’ appeals, finding that the object, spirit and purpose of section 120.4 of the Act were not indicative of a general policy against surplus stripping. The Court held that the fact that specific anti-avoidance provisions were enacted at the time that 120.4 was enacted provided an indicator that Parliament was fully aware of the manner in which taxpayer’s could distribute corporate surplus. Parliament’s exclusion of capital gains from section 120.4 was thus deliberately not intended to capture the transactions at issue. In furtherance of this conclusion, the Court, by reviewing external evidence such as the 1999 Budget Plan and Notices of Way and Means Motions, found that the subsequent amendments to 120.4, which added only certain capital gains transactions, was evidence that “…Parliament decided not to cover capital gains when the measure was first enacted, and chose to do so on a prospective basis only in respect to a narrow subset of capital gains transaction.” [para. 74]

Since 1995, the Large Corporation Rules found in subsections 165(1.11), 169(2.1) and 152(4.4) of the Income Tax Act (Canada) have applied to discourage large corporations from objecting to tax assessments as a means of keeping tax years “open”. In Bakorp Management Ltd. v. The Queen, 2013 TCC 94, the Minister brought a motion to dismiss the corporation’s tax appeal on the basis that it failed to comply with the Large Corporation Rules. Basically, these rules require that an objection fled by a large corporation must reasonably describe each issue to be decided and, for each issue, must specify the relief sought as the amount of change in a balance. The rules also limit the issues and relief sought in a subsequent appeal to those set out in the objection. The locus classicus on the interpretation of these provisions is the decision of the Federal Court of Appeal in The Queen v. Potash Corporation of Saskatchewan Inc., 2003 FCA 471.

In Bakorp, the corporation owned shares of another corporation that were redeemed in 1992 for $338M. As the proceeds from the redemption were received over a number of years, Bakorp reported in 1995 the portion of the deemed dividend related to proceeds received in 1995. The Minister reassessed Bakorp’s 1995 tax year to reduce the deemed dividend from $53M to $25M, a reduction of $28M. The corporation objected to the Minister’s reassessment and the Minister confirmed the reassessment. The corporation then filed a Notice of Appeal taking the position that the $28M deemed dividend remaining in its 1995 income was actually received in 1993 and should be included in the corporation’s 1993 tax year, not the 1995 year.

The Minister was, no doubt, surprised by Bakorp’s position to reduce the 1995 deemed dividend to zero. In response, the Minister brought a motion to dismiss the corporation’s appeal, arguing that the issue and relief set out in the Notice of Appeal were not those set out in the Notice of Objection.

Bakorp argued that it had complied with the Large Corporation Rules because the issue in both its objection and appeal was, fundamentally, the amount of deemed dividend to be included in its 1995 income. The Court disagreed noting that it could not “imagine a fuller reconstruction than making a 180 degree turn in what is to be included in income.” In the Court’s view, applying such a general approach to identifying the issue would render the Large Corporation Rules meaningless. In respect of specifying the relief sought, the Court was not prepared to accept that a complete reversal from wanting $53M included in income to wanting nothing included in income could be seen as complying with the Large Corporation Rules.

As a notice of appeal has been filed with the Federal Court of Appeal, the Tax Court’s reasoning will not be the last word in this particular matter. However, it is safe to say that the Bakorp decision is a timely reminder that large corporations must take particular care in preparing a Notice of Objection. Failure to do so may seriously impact a later appeal to the Tax Court of Canada.

On December 20, 2012, the Tax Court ruled on a motion under Rule 52 of the Tax Court of Canada Rules (General Procedure) (the “Rules”) to require the Minister to comply with a demand for particulars specifying how the Income Tax Act (the “Act”) was abused in a General Anti-Avoidance rule (“GAAR”) case.

In Birchcliff Energy Ltd. v The Queen (2012-10887(IT)G), the Minister alleged that the GAAR should apply because the series of transactions (the “Transactions”) undertaken by the taxpayer resulted in a misuse of 10 sections of the Act and an abuse of the Act as a whole. In response, the taxpayer sought an order requiring the Minister to disclose the policy behind each section of the Act that was allegedly abused and how the Transactions abused that policy.

The Tax Court held that the Minister must disclose the object, spirit, and purpose of the provisions of the Act (the “Policy”) that the assessor relied upon in making the assessment. The Minister does not need to disclose the actual Policy that will be argued at trial, or the way that the Policy was abused.

Arguments

The taxpayer argued that in making a GAAR assessment, the Minister must assume as a fact the Policy and an abuse of that Policy. Relying on Johnston v M.N.R. (1948 S.C.R. 486), the taxpayer argued that the Crown had a duty to disclose “precise findings of fact and rulings of law which have given rise to the controversy”. The taxpayer also argued that there was a heightened obligation on the Minister to be specific in cases of misconduct, negligence, or misrepresentation, relying on Chief Justice Bowman’s decision in Ver v Canada ([1995] T.C.J. No. 593). Misuse or abuse, it was argued, belonged in the category of offenses requiring more precise disclosure.

The Minister, on the other hand, argued that the Policy was a conclusion of law, not fact and that only allegations of fact must be disclosed in particulars. The Minister raised a “slippery slope” argument, suggesting that this ruling could require the Crown to explain its legal interpretation of all provisions of the Act in the future. Although the Minister acknowledged that Trustco v Canada (2005 SCC 54) placed the burden of identifying the Policy on the Crown, that burden did not apply to pleadings. The Minister also argued that disclosing the Policy would not help the Appellant because the Minister could still argue a different policy at trial.

Decision

The Tax Court highlighted the unique nature of GAAR, and stated that any disclosure requirements from this case would only apply to GAAR assessments. Justice Campbell Miller specifically pointed to the Crown’s burden to prove the Policy in GAAR cases as evidence of its unique requirements.

Justice Miller separated the elements of the Policy into two distinct categories:

1) The actual Policy that would be argued and decided at trial (the “True Policy”), and

2) The fact that the Crown relied on a particular Policy when determining that GAAR should be applied (the “Historical Policy”).

The Court held that the True Policy was a question of law that should ultimately be decided by the court. This policy was open to change throughout the course of litigation and did not need to be disclosed to the Appellant at this stage.

The Historical Policy, however, was held to be “a material fact, not an assumption, but the fact the Minister relied upon x or y policy underlying the legislative provisions at play in the case.” Taxpayers are entitled in pleadings to know the basis of the assessment. Disclosing the Historical Policy would be similar to disclosing the legislation upon which non-GAAR assessments are made. The Court distinguished the Historical Policy from the type of materials to which the taxpayer was denied access in Mastronardi v The Queen (2010 TCC 57), a recent Tax Court decision holding that the Minister did not need to disclose the extrinsic materials on which the Minister relied in determining the Policy. In Mastronardi, the materials sought to be disclosed were evidence that could be used to prove the policy, rather than the material fact of which policy was relied on (evidence itself is not a material fact).

The Historical Policy that must be disclosed is not the Policy of each identified section in isolation. The Minister must identify the collective policy of all of the identified provisions together that the Crown relied on in making the assessment. The Historical Policy should be disclosed under paragraph 49(1)(e) of the Rules as “any other material fact”.

With regards to the Appellant’s request for information on how the Policy was abused, the Court held that it was not required to be disclosed. Abuse is a conclusion of law to be determined by the court based on the Policy and the facts of the case. The Minister did not assume how the Policy was abused as a fact. The Minister concluded, based on the Policy and the facts assumed, that there was an abuse.

* * *

The Tax Court has reiterated that the taxpayer is entitled to know the basis of the assessment made against him. Such an approach is consistent with principles of fundamental fairness and is entirely in keeping with the letter and spirit of the Rules.

In what is certain to be the first step in a very important precedent, the Tax Court of Canada held on October 2, 2012 that the advisor penalties created under section 163.2 of the Income Tax Act constitute criminal offences and entitle the taxpayer to all of the constitutional protections that entails, including a standard of proof beyond a reasonable doubt: Guindon v. The Queen, 2012 TCC 287.

The case involved a tax avoidance scheme that was deeply flawed from a technical perspective:

[1] The participants in a donation program (the “Program”) were to acquire timeshare units as beneficiaries of a trust for a fraction of their value and donate them to a charity in exchange for tax receipts for the actual value of the units. No donation ever took place as the timeshare units never existed and no trust was settled. The Minister of National Revenue (the “Minister”), on the basis that the Appellant made, participated in, assented to or acquiesced in the making of 135 tax receipts that she knew, or would reasonably be expected to have known, constituted false statements that could be used by the participants to claim an unwarranted tax credit under the Income Tax Act (the “Act”), assessed against the Appellant on August 1, 2008 penalties under section 163.2 of the Act in the amount of $546,747 in respect of false statements made in the context of that donation program. The Appellant appealed the assessment.

The appellant was a lawyer with no experience or expertise in tax law. Nevertheless she prepared an opinion that was used by the Program promoters to attract potential donors. The opinion was found to be badly flawed and purported to rely upon documentation which the appellant had never examined (and which, in fact, did not exist):

[105] The Appellant wrote and endorsed a legal opinion regarding the Program, an opinion which she knew would be part of a promotional package intended for potential participants in the Program. Her legal opinion clearly states that she reviewed the principal documents relating to the Program when these documents had in fact never been provided to her. She knew, therefore, that her legal opinion was flawed and misleading.

[106] The Appellant chose to rely on the Program’s Principals. They pressured her into providing them with an executed version of the legal opinion without providing her with the supporting documents on which to found her opinion. Yet her legal opinion does not reflect this reality. Rather, it indicates that the documents were reviewed.

[107] When the Appellant chose to involve the Charity in the Program and, later, to sign the tax receipts, she knew she could not rely on her legal opinion. She again decided to rely on the Principals. However, the Principals had relied on the Appellant to attest the legality of the Program. The Appellant knew her legal opinion could not be relied on and, for that reason, she could not be entitled to blindly rely on the Principals. In other words, the Appellant would have been entitled to rely on the Principals if a different professional had signed the legal opinion. She could not, however, rely on her own legal opinion which she knew to be incomplete.

[108] Her conduct is indicative either of complete disregard of the law and whether it was complied with or not or of wilful blindness. The Appellant should have refrained from involving the Charity and signing the tax receipts until she had either reviewed the documents herself or had another professional approve the Program’s activities. When the Appellant issued the tax receipts, she could have reasonably been expected to know that those receipts were tainted by an omission, namely, that no professional had ever verified the legal basis of the Program.

[109] The Appellant cannot agree to endorse a legal opinion and then justify her wrongful conduct by saying she did not have the necessary knowledge — either of tax law or of foreign law — to write that opinion.

[110] Moreover, the Appellant’s conduct after the tax receipts were signed negatively affects her credibility and reflects badly on her character. When the Appellant was informed, after the tax receipts had been issued, that the legal titles were not in order, she co-signed a letter informing the participants of the situation. At that point, the Appellant knew she could not rely on the Principals — the same individuals who had never provided her with the documents she was supposed to review and the same individuals she had trusted in signing the tax receipts. Yet when Ploughman sent out a letter, days before the end of the fiscal year, stating that all was in order and that the participants could submit their receipts, the Appellant blindly relied on him again, without asking any further questions.

Thus, it is reasonably clear that if the test under section 163.2 were a normal burden of “balance of probabilities” the advisor penalties against the appellant would have been sustained.

Justice Bédard, however, performed a very thorough and detailed analysis of section 163.2 to determine whether the penalties imposed amounted to criminal sanctions. At the end of that careful analysis he concluded that they did create criminal offences and allowed the appeal:

[69] The Respondent submits that it is not the penalty that would stigmatize the Appellant but rather her unlawful conduct and the professional sanctions that could result from it. What the Respondent fails to recognize is that this judgment, when rendered, will be public. That professional sanctions may be imposed subsequently does not alter the fact that there will be a public document setting out all the details of the Appellant’s conduct, whether that conduct was found to qualify as culpable conduct or not, and indicating the amount of the penalty that she is being assessed. This constitutes a form of stigma which one should not fail to consider.

[70] In conclusion, applying the rationale enunciated in Wigglesworth, section 163.2 of the Act should be considered as creating a criminal offence because it is so far-reaching and broad in scope that its intent is to promote public order and protect the public at large rather than to deter specific behaviour and ensure compliance with the regulatory scheme of the Act. Furthermore, the substantial penalty imposed on the third party — a penalty which can potentially be even greater than the fine imposed under the criminal provisions of section 239 of the Act, without the third party even benefiting from the protection of the Charter — qualifies as a true penal consequence.

This case will almost undoubtedly be appealed, quite possibly to the Supreme Court of Canada. Nevertheless, the rationale of the decision seems balanced and well-reasoned. If it is sustained on appeal it may very well sound the death knell for advisor penalties under section 163.2 since the burden of proof on the Crown, i.e., proof beyond a reasonable doubt, will normally be far too onerous to justify prosecuting such penalties.

Traditionally in a Tax Court appeal the costs awarded to a successful taxpayer have been no more than a small fraction of the out-of-pocket costs actually incurred in pursuing the appeal. The Court made very rare exceptions in the case of improper or vexatious conduct on the part of CRA. In recent years, however, the Tax Court has shown an increasing willingness to award substantial costs in cases where the taxpayer has been successful on important and novel issues. The recent decision of the Tax Court in Dickie v. The Queen(September 19, 2012) is an important example of how the law is evolving in this area.

In order to understand the implications of the cost award one must briefly examine the background of the underlying tax issue which was reported as Dickie v The Queen (July 10, 2012). The taxpayer was an aboriginal person living on a Reserve. He carried on a substantial business of cutting and slashing timber and brush to permit oil and gas exploration companies to carry out seismic testing. The administrative functions of the business were carried on within the Reserve but the physical activity of the business was carried on almost exclusively outside of the Reserve, generally within an 80 kilometre radius of the Reserve:

[8] While the Appellant clearly negotiated and received accepted contracts for work from the Reserve location, it is clear that 99% of the work was conducted off Reserve, within an 80-kilometre radius of the Reserve. In 2003, the Appellant had over 140 workers engaged for his Business and had revenue of approximately $3.4 million. The Appellant testified he hired mainly aboriginal workers, 16 in all from the Reserve, and others from Reserves in other parts of British Columbia, Alberta, Saskatchewan and even as far away as Newfoundland and Labrador. In all, the evidence is that approximately 105 of the 140 workers were aboriginal workers.

[9] The Appellant testified that the Business would bid on between 20 to 25 tenders a year and was usually successful 20% of the time, hence was awarded four to five contract bids a year. He also testified a small portion of the work of the Business was from small job requests but that the great majority of the Appellant’s Business revenue was from the larger bid contracts. The evidence is clear that all of the clients of the Business, generally oil and gas exploration or distribution companies, were not located or based on the Reserve and in fact most were based in Calgary, Alberta, the place of their office. The Appellant also testified that in 2003 the Business was a competitive one, evidenced also by the fact he was only successful on 20% of his bids.

The taxpayer claimed that his income was exempt for taxation by virtue of paragraph 81(1)(a) of the Income Tax Act:

81(1) There shall not be included in computing the income of a taxpayer for a taxation year,

(a) statutory exemptions [including Indians] – an amount that is declared to be exempt from income tax by any other enactment of Parliament, other than an amount received or receivable by an individual that is exempt by virtue of a provision contained in a tax convention or agreement with another country that has the force of law in Canada; . . .

Traditionally the courts construed this exemption somewhat narrowly placing significant emphasis on physical connection to the reserve and displaying a certain reluctance to apply the exemption to activities in the commercial mainstream.

Two recent decisions of the Supreme Court of Canada, Bastien Estate v. Canada, 2011 SCC 38, [2011] 2 S.C.R. 710 and Dubé v. Canada, 2011 SCC 39, [2011] 2 S.C.R. 764, substantially changed the law in this area. In a nutshell they held that the commercial mainstream test should no longer carry the degree of weight it had historically:

[21] Cromwell J. made it clear that the expression “Indian qua Indian” referred to by La Forest J. and Gonthier J. in Williams does not mean one can import into the purpose of the legislation “an effort to preserve the traditional way of life in Indian communities” or consider as a relevant factor “whether the investment income benefits the traditional Native way of life”. While Cromwell J. found that he did not read the judgments in Mitchell or Williams “as departing from a focus on the location of the property in question when applying the tax exemption”, he also found that neither decision mandated an approach that assessed what is in fact, to use the parlance of the Appellant here, the “Indianness” of the activity. In paragraph 27 of Bastien Estate, Cromwell J. stated:

[27] . . . A purposive interpretation goes too far if it substitutes for the inquiry into the location of the property mandated by the statute an assessment of what does or does not constitute an “Indian” way of life on a reserve. . . .

[22] And in paragraph 28 stated:

[28] . . ., a purposive interpretation of the exemption does not require that the evolution of that way of life should be impeded. Rather, the comments in both Mitchell and Williams in relation to the protection of property which Indians hold qua Indians should be read in relation to the need to establish a connection between the property and the reserve such that it may be said that the property is situated there for the purposes of the Indian Act. While the relationship between property and life on the reserve may in some cases be a factor tending to strengthen or weaken the connection between the property and the reserve, the availability of the exemption does not depend on whether the property is integral to the life of the reserve or to the preservation of the traditional Indian way of life. . .

[23] Likewise Cromwell J. cautioned against elevating considerations of whether the economic activity was in the “commercial mainstream” as a factor of determinative weight in determining the situs of investment income, which he felt was done in Recalma v. Canada, 98 DTC 6238 (F.C.A.) and other decisions of the lower courts, as “problematic” as he stated in paragraph 56 :

[56] . . . because it might be taken as setting up a false opposition between “commercial mainstream” activities and activities on a reserve. Linden J.A. in Folster was alive to this danger when he observed that the use of the term “commercial mainstream” might “… imply, incorrectly, that trade and commerce is somehow foreign to First Nations” (para. 14, note 27). He was also careful to observe in Recalma that the “commercial mainstream” consideration was not a separate test for the determination of the situs of investment property, but an “aid” to be taken into consideration in the analysis of the question (para. 9). Notwithstanding this wise counsel, the “commercial mainstream” consideration has sometimes become a determinative test. . . .

Justice Pizzitelli applied the new test enunciated by the Supreme Court and came to the conclusion that the taxpayer had demonstrated an entitlement to the exemption claimed and made the following direction as to costs:

[74] The appeal is allowed with costs to the Appellant; however, the parties are invited to file written submissions within 30 days as to costs if any of them feel a standard cost award should not stand.

In making his cost award roughly two months later Justice Pizzitelli was critical of CRA’s reliance upon the “commercial mainstream” argument in light of the Bastien and Dubé decisions:

[20] I do however also agree with the Appellant that having regard to the clear wording and intention of the Supreme Court of Canada’s decisions effectively reducing the importance of the commercial mainstream factor, if not obliterating it, that the Respondent could have shortened the proceeding by conceding this fact before trial. While the Respondent’s counsel acknowledged the reduction in weight to be given to the issue in argument at trial, she nonetheless maintained its assumptions in its pleadings regarding the commercial mainstream and argued forcefully that such factor would grant an advantage to aboriginal businesses over non-aboriginal businesses, an argument in my opinion clearly not consistent with the Supreme Court of Canada’s decisions on the issue. As I referred to in my decision, if the other factors are sufficient to establish the income was situate on a Reserve, then any such resulting advantage was acceptable. In my view, the Respondent could have significantly reduced the length of the hearing by conceding the argument before trial on receiving the Appellant’s counsel’s letter. In my view, this matter falls under the heading of Rule 147(h) the denial or the neglect or refusal of any party to admit anything that should have been admitted. In my opinion, the Respondent paid lip service to the Supreme Court of Canada’s decisions on the importance of the commercial mainstream argument yet proceeded to trial on the basis it was one of its strongest arguments.

In the result he awarded the taxpayer 60% of his out-of-pocket costs and 100% of his disbursements claimed:

[26] In my view, having regard to the clear victory of the Appellant in this matter, the sizeable amount of taxes in dispute including for other years for which this case served as a test case, the importance of the commercial mainstream issue in particular and the complexity of the issue in light of the Respondent’s position notwithstanding the Supreme Court of Canada’s decisions in Bastien Estate and Dubé and the amount of work generated for the Appellant as a result of the Respondent’s position on that issue and the importance it continued to give to the commercial mainstream factor as above discussed, which in my view should have been conceded before trial to shorten the trial and narrow the issues, there clearly exist special circumstances justified by the application of factors listed in Rule 147(3) to merit awarding the Appellant costs in excess of the Tariff.

[27] The Appellant asked for between 50 and 75% of solicitor and client costs plus disbursements, consistent with the range of traditional awards cited by author Mark Orkin in the Law of Costs, 2nd ed., Vol. 1 (Aurora: Canada Law Book, 2008) at 2-3 as quoted by Campbell J. in Re Zeller Estateabove at paragraph 9. The Appellant’s costs on a solicitor and client basis claimed are $133,000 plus $10,000 in disbursements. In my opinion, the Appellant is deserving of 60% of such claim, amounting to $80,000 plus $10,000 in disbursements, for a total award of $90,000.

While the background of this case is somewhat uncommon, the issues it presents occur frequently in serious commercial tax litigation: important, novel issues involving a great deal of tax. When this is combined with a stubborn refusal on the part of CRA to acknowledge the obvious weaknesses of some of its arguments, we may begin to see more significant costs awards in the mold of the Dickie decision.

In my recent blog post on the Newmont Canada Corporation decision I examined the importance that the Federal Court of Appeal attached to credible evidence put forward by taxpayers in tax appeals. The recent decision of Justice Woods in the Tax Court in Bruno v. The Queen is a good illustration of a fair and balanced approach to weighing that evidence.

The taxpayer, Mrs. Bruno, had a business that specialized in supplying custom window coverings. During the 2007 and 2008 taxation years she employed two of her children in the business on a part-time basis and paid them (in the aggregate) $18,000 and $7,000, in each respective year, for their services.

Justice Woods summarized the evidence as follows:

[6] In the 2007 taxation year, Ms. Bruno reported income from the business in the amount of $11,944. In the 2008 taxation year, she reported a loss from the business in the amount of $16,963.

[7] Ms. Bruno’s two children were 15-16 and 13-14 in the years at issue and helped out in the business on weekends and holidays.

[8] According to Ms. Bruno’s evidence, the younger child did less skilled tasks such as cleaning and answering phones, and the older child did mainly clerical work. Both children also spent time learning sales.

[9] Ms. Bruno entered into evidence a summary of the hours worked and wages earned by the children. Wages were payable at the rate of between $10 and $12 per hour. The summary showed that the children generally worked store hours on both weekend days during 2007 and on one weekend day during 2008, as well as on holidays in both years. The reduction in the hours worked in 2008 was explained by Ms. Bruno on the basis that the business was not doing as well in that year.

[10] The wages were not paid by cheque. Instead, Ms. Bruno paid for some of the children’s personal expenditures which in aggregate are approximately equal to the wages shown on the summary. According to Ms. Bruno’s testimony, the expenditures were luxury items that the children chose to purchase out of the money that they had earned. A list of the expenditures with a brief description was kept by Ms. Bruno.

[11] Ms. Bruno stated that her accountant advised her that she could not take a deduction for expenditures on the children’s basic needs, but that she could take a deduction for luxury items. She said that she followed this advice and kept track of the expenses that would qualify.

[12] Ms. Bruno testified that she could veto any of the children’s purchases that were inappropriate but that she usually approved them.

The Crown’s position was short and to the point:

[15] At the outset, I would comment that the Crown did not argue that the wages were unreasonable based on the services performed and there was virtually no cross-examination of Ms. Bruno on this point. I will therefore accept that the amounts are reasonable.

[16] The Crown argued that the expenditures are not deductible because they are personal or living expenditures of Ms. Bruno and the children did not have sufficient discretion over the funds.

Justice Woods dismissed the Crown’s arguments that the children did not have sufficient discretion over the application of the funds:

[22] As for the Crown’s argument that the children did not have sufficient discretion over the funds, this argument is based on the decision of Beaubier J. in Bradley v The Queen, 2006 TCC 500, 2006 DTC 3535. Paragraph 9 of that decision reads:

[9] But in a related family, parent-child situation, payment must be made and deposited as it would be to a stranger. The payee must receive and control the alleged payment in his or her name and be able to use it for his or her benefit without any further control by the payer. That did not happen in this case.

[23] This comment suggests that the children must have complete discretion over the expenditures made. I would respectfully disagree with this and note that Bradley is not a binding precedent since it was an informal procedure case. I see nothing wrong with parents having a veto over expenditures made by their children.

Her conclusion on this point seems unimpeachable. There is little merit in the suggestion that a minor child must have entirely unfettered discretion as to what to do with his or her earnings in order for those amounts to constitute the child’s income. Would it be any less the child’s income if the parents could veto a decision by the minor to purchase a pit bull or pay for hang-glider lessons?

On the broader issue whether wages paid to children were deductible, Justice Woods relied upon the Symes decision of the Supreme Court of Canada:

[19] In considering the interplay between s. 18(1)(a) and (h), the majority decision in Symes concluded that the prohibition for personal expenditures in s. 18(1)(h) does not apply to an expenditure that was laid out for the purpose of earning income. Justice Iacobucci stated, at page 6014:

Upon reflection, therefore, no test has been proposed which improves upon or which substantially modifies a test derived directly from the language of s. 18(1)(a). The analytical trail leads back to its source, and I simply ask the following: did the appellant incur child care expenses for the purpose of gaining or producing income from a business?

[20] Accordingly, if a taxpayer incurs an expense for the purpose of gaining or producing income from a business, the deduction will not be prohibited pursuant to s. 18(1)(h) on the basis that it also has a personal benefit to the taxpayer.

[21] Applying this principle to the facts in this case, if the children are owed wages in reasonable amount, a deduction may be claimed if the wages are paid in the form of purchasing luxury personal items chosen by the children.

Justice Woods then turned to what was undoubtedly the most difficult aspect of this case: weighing and assessing the taxpayer’s evidence.

[24] Turning to the facts of this case, the difficulty that I have with Ms. Bruno’s argument is that the evidence about the expenditures was not sufficiently detailed for me to be satisfied, even on a prima facie basis, that all the expenditures were made for the children’s benefit, let alone that they were for luxury items.

[25] The evidence concerning the nature of the expenditures consisted mainly of Ms. Bruno’s oral testimony and the list that she prepared. As for the oral testimony, it is self‑serving and not sufficiently detailed for me to be satisfied on most of the expenditures. As for the accounting records, a great many of the descriptions of the expenditures were simply too general to be of great assistance.

[26] Based on the evidence as a whole, I am satisfied that some of the expenditures are luxury items for the children’s benefit. However, the evidence is not detailed enough for me to determine which items qualify. It is appropriate in these circumstances, where the appeal is governed by the informal procedure, for the Court to make a rough estimate. On that basis, I propose to allow a deduction for 50 percent of the amounts claimed.

On the one hand she accepted that the services were provided; that the children’s labour actually constituted a tangible benefit to the business. On the other hand the taxpayer had not put forward a sufficiently strong case to persuade Justice Woods that there was not an element of personal benefit to the parents. As a result she split the difference and allowed 50% of the salary expenses claimed.

While the Bruno decision is an informal procedure case and involved relatively small amounts, in my view it clearly illustrates the difficulty a trial judge has in assessing the evidence of a credible witness dealing with difficult or imprecise facts. It further demonstrates the importance of careful preparation of witnesses and the documentary evidence that must be introduced. Finally, it shows once more that counsel must have a finely-tuned ear to anticipate and deal with the types of issues that will likely concern the trial judge.

Dentons is the world's largest law firm, delivering quality and value to clients around the globe. Dentons is a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner and recognized by prominent business and legal publications for its innovations in client service, including founding Nextlaw Labs and the Nextlaw Global Referral Network. Dentons' polycentric approach and world-class talent challenge the status quo to advance client interests in the communities in which we live and work. www.dentons.com.

This website uses cookies to give you the best user experience, for analytics, and improvement of functionalities of this website and third party sites. You can learn more about our use of cookies and similar technologies and your choices by reviewing our Cookies Policy. By clicking "I agree" you agree to our use of cookies and similar technologies.I agree